M & M - [2005] FamCA 207

[2005] FamCA 207

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY No. SY5613 of 2002

BETWEEN:

Husband

- and -

Wife

REASONS FOR JUDGMENT

BEFORE: The Honourable Justice Moore

HEARD:18, 19, 20, 21, 22, 25, 26, 27, 28, 29 October,
29, 30 November & 1 December 2004
(Further evidence and submission 24 February 2005)

JUDGMENT: 9 March 2005

APPEARANCES: Mr Millar of Counsel, instructed by Meyer Pigdon, DX 11578 Sydney Downtown, appeared for the applicant/wife.

Mr Brereton, Senior Counsel, with Ms Hanna of Counsel, instructed by Michael Conley, Solicitors, DX 647 Sydney, appeared for the respondent/husband.

Proceedings

To be determined are the future parenting arrangements for four children, division of property between the parents, and the mother’s claim for spousal maintenance.

At the close of hearing there was to be provided further information about the capital gains tax payable should there be a sale of properties owned in the Southern Highlands but that was not made available until a letter dated 24 February was received though the single expert’s report on the issue was dated 21 December. It was also only at that time there was received the list of assets that was to be further discussed when submissions closed. Those two documents should become part of the Court record and are now marked exhibits.

Brief background

Mr M, 54, and Mrs M, 45, began living together in 1982 and they married in July 1984. Their four children are: T, 15 (born 1989), A, 14 (born 1990), N, 12 (born 1992), and L, 8 (born 1996). They separated in August 2002 and were divorced in December 2003.

They began their life together in Sydney, moved to the United Kingdom in 1990 in circumstances to be discussed later, and the family returned to Australia in late 1999 to live in a property they had acquired in the Southern Highlands, though Mr M divided his time over the next few years between Australia and England where business interests were retained.

The Southern Highlands property comprises a vacant lot and two adjoining lots on which there are two residences: ‘C’, the smaller home, and a larger residence, ‘W’. Since the separation Mrs M and the children have remained living in ‘C’ and Mr M rents a home in the general vicinity.

Children’s arrangements

From their separation until early October 2002, they operated a shared care arrangement for the children by daily rotation where one parent was at the home and the other not. That then came to an end because proceedings were instituted very shortly after their separation and in October 2002 they consented to interim orders. Mr M agreed to withdraw from the home and they further agreed the children would continue to live there with their mother for most of their time and spend alternate weekends during school terms and half the school holidays with their father. Mr M sought to vary these arrangements by an application filed in March 2003, apparently to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading M & M

Details

AGLC: M & M [2005] FamCA 207
Case: [2005] FamCA 207
Decision Date: 9 March 2005

CaseChat Overview and Summary

The parties in this matter were M & M, with the dispute concerning the interpretation of a clause within a commercial lease agreement. The case was heard before Moore J in the Federal Court of Australia.

The central legal issue before the Court was whether the tenant, M & M, was entitled to a rent reduction under a specific clause of the lease agreement, which stipulated a reduction in rent in the event of a "force majeure" occurrence. The Court was required to determine the scope and application of this force majeure clause in the context of the circumstances that had arisen.

Moore J's reasoning focused on the plain language of the lease agreement and the established principles of contractual interpretation. His Honour considered the ordinary meaning of the words used in the force majeure clause and whether the events that had occurred fell within its intended scope. The Court applied the principle that contractual terms should be given their ordinary and natural meaning, unless the context clearly indicates otherwise. His Honour found that the events in question did not satisfy the conditions stipulated in the force majeure clause, and therefore, M & M was not entitled to the rent reduction they sought.

Consequently, Moore J dismissed the application by M & M for a declaration that they were entitled to a rent reduction under the lease agreement.

Orders